Montana

Montana, like Pennsylvania, recognizes and protects the right to a healthy environment in the declaration of rights section of its constitution.

The Montana Constitution reads as follows:

Article II, Declaration of Rights

3, Inalienable Rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.

This Declaration of Rights language is enhanced by the following additional provisions in the Montana constitution:

Article IX, Environment and Natural Resources

1, Protection and Improvement. (1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations. (2) The legislature shall provide for the administration and enforcement of this duty. (3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

3, Water Rights. (1) All existing rights to the use of any waters for any useful or beneficial purpose are hereby recognized and confirmed. (2) The use of all water that is now or may hereafter be appropriated for sale, rent, distribution, or other beneficial use, the right of way over the lands of others for all ditches, drains, flumes, canals, and aqueducts necessarily used in connection therewith, and the sites for reservoirs necessary for collecting and storing water shall be held to be a public use. (3)All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law. (4) The legislature shall provide for the administration, control, and regulation of water rights and shall establish a system of centralized records, in addition to the present system of local records.

7, Preservation of Harvest Heritage. The opportunity to harvest wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private rights.

Two key legal cases that help to demonstrate the power and importance of Montana’s provision for environmental protection include:

An April 2019, a decision out of the Montana courts demonstrates that continuing importance of Montana’s Green Amendment. The case was brought by the Park County Environmental Council and the Greater Yellowstone Coalition to challenge a license given to Lucky Minerals Inc. by the Montana Department of Environmental Quality. The challengers were concerned about the level of state review regarding impacts to water quality, wildlife, and community quality of life that would result from the mining operations. The legal opposition to the license was also grounded in a challenge to a 2011 legislative amendment to the Montana Environmental Policy Act that disallowed a court from stopping work on a project if it determined that a state agency did not undertake the appropriate level of analysis during its review and approval of the project. As a result of the 2011 amendment, the only remedy left to concerned and impacted community members challenging state approval of a project was to have the case remanded to the decisionmaking agency for further review while at the same time the approved project proceeded. As the court explained: “The Amendments leave a party who has succeeded in challenging an agency’s MEPA decision with a meaningless remedy. The underlying environmental issues and concerns about degradation, leading to a determination that an agency’s MEPA decision was insufficient, would unfold for what could be a very considerable period of time, given the remand process and litigation that could follow. The agency would be left evaluating the “potential” impacts of actions that would already have occurred.”

The April 12, 2019 decision out of the Montana Sixth Judicial District Court determined that the 2011 amendment as applied to this case was unconstitutional in that it violated both the State’s Green Amendment found in Article II, Section 3 & Article IX, Section 1 of the Constitution, as well as Article II Section 8 of the constitution that promises meaningful public participation prior to agency decisionmaking. Because the state was unable to show a compelling state interest in the legislative amendment that resulted in the grant of the gold mining license, the license was voided by the court.

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